As filed with the Securities and Exchange Commission
on September 6, 1994
Registration No. 33-54249
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
Delaware 1700 Lincoln Street 13-1806811
(State or other jurisdiction of Denver, Colorado 80203 (I.R.S. Employer
incorporation or organization) (303) 863-7414 Identification No.)
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Timothy J. Schmitt, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq. Francis J. Morison, Esq.
White & Case Davis Polk & Wardwell
1155 Avenue of the Americas 450 Lexington Avenue
New York, New York 10036 New York, New York 10017
(212) 819-8200 (212) 450-4000
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. (x)
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
PROSPECTUS
NEWMONT MINING CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
CONVERTIBLE DEBT SECURITIES
COMMON STOCK WARRANTS
Newmont Mining Corporation (the "Company") may from time to time
offer, together or separately, (i) shares of its common stock, par value
$1.60 per share ("Common Stock"), (ii) shares of its preferred stock, par
value $5.00 per share ("Preferred Stock"), which may be represented by
depositary shares (the "Depositary Shares") which will represent a fraction
of a share of Preferred Stock, (iii) convertible debt securities (the
"Convertible Debt Securities") consisting of debentures, notes or other
evidences of indebtedness representing unsecured obligations of the
Company, which may be either senior debt securities (the "Convertible
Senior Debt Securities") or subordinated debt securities (the "Convertible
Subordinated Debt Securities"), and which will be convertible into Common
Stock, and (iv) warrants to purchase Common Stock ("Warrants" and, together
with the Common Stock, the Preferred Stock, the Depositary Shares and the
Convertible Debt Securities, the "Securities"). The Securities offered
pursuant to this Prospectus may be issued in one or more series or
issuances, at prices and on terms to be determined at the time of sale and
to be set forth in supplements to this Prospectus. The Securities will be
limited to $300,000,000 aggregate public offering price (or its equivalent
(based on the applicable exchange rate at the time of sale) if Convertible
Debt Securities are issued with principal amounts denominated in one or
more foreign currencies or currency units). The Company may sell
Securities to or through underwriters, and also may sell Securities
directly to other purchasers or through agents. See "Plan of Distri-
bution."
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying Prospectus Supplement, including, where
applicable: the specific designation or title; aggregate amount or
principal amount; in the case of Preferred Stock, any dividend,
liquidation, voting, conversion and other rights, terms for sinking or
purchase fund payments and terms for redemption; in the case of Convertible
Debt Securities, denominations (which may be in United States dollars, in
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any other currency or in a composite currency), maturity, rate (which may
be fixed or variable) and time of payment of interest, if any, terms for
redemption or early repayment at the option of the Company or the holder,
terms for sinking or purchase fund payments and terms for conversion into
Common Stock; in the case of the Warrants, expiration date and terms of
exercise; the initial public offering price; the names of any underwriters
or agents; amount or the principal amounts, if any, to be purchased by
underwriters or agents and the compensation, if any, of such underwriters
or agents; the net proceeds to the Company and the other terms in
connection with the Offered Securities.
The Convertible Senior Debt Securities will rank equally with all
other unsubordinated and unsecured indebtedness of the Company. The
Convertible Subordinated Debt Securities will be subordinated in right of
payment to all Senior Indebtedness of the Company (as defined herein). See
"Description of Convertible Debt Securities -- Subordination of Convertible
Subordinated Debt Securities."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following regional offices of the Commission: Seven World Trade
Center, Suite 1300, New York, New York 10048; Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material can be obtained at prescribed rates by writing to the
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. Such material can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 on
which exchange the common stock of the Company is listed.
This Prospectus constitutes part of a registration statement
filed by the Company with the Commission under the Securities Act of 1933,
as amended (the "Act"). This Prospectus omits certain of the information
contained in the registration statement, and reference is hereby made to
the registration statement and to the exhibits relating thereto for further
information with respect to the Company and the Securities offered hereby.
Any statements contained herein concerning the provisions of any document
are not necessarily complete, and, in each instance, reference is made to
the copy of such document filed as an exhibit to the registration statement
or otherwise filed with the Commission. Each such statement is qualified
in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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The Company hereby incorporates by reference in this Prospectus
the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993 and the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994 and June 30, 1994, which have been filed with the
Commission. All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and
prior to the termination of the offering of the Securities offered hereby
shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document all or a portion of which is incorpo-
rated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including
beneficial owners, to whom a copy of this Prospectus has been delivered, on
the request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus
by reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents). Request
for such copies should be directed to the Office of the Secretary, Newmont
Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, telephone:
(303) 863-7414.
THE COMPANY
Newmont Mining Corporation (the "Company") is a U.S. company
whose sole asset is a controlling equity interest in Newmont Gold Company
("NGC"). NGC is a worldwide company engaged in gold production,
exploration for gold and acquisition of gold properties. The Company owns
89.22% of the common stock, 100% of the preferred stock and an option to
purchase additional shares of the common stock of NGC.
NGC is the Company's sole subsidiary or interest. Based on 1993
production as set forth in published reports, NGC is the largest producer
of gold from North American operations. NGC produces gold on the Carlin
Trend in Nevada. NGC also produces gold through a 38% owned joint venture
in Peru, which commenced operations in August 1993. NGC additionally has a
50% owned joint venture in Uzbekistan and an 80% owned joint venture in
Indonesia, both of which are scheduled to commence gold production in 1995.
NGC also owns 100% of Newmont Exploration Limited ("NEL"), which, together
with various other affiliates, explores worldwide for gold. Management
believes that the combined exploration and development budget of NEL and
such other NGC affiliates for 1994 is one of the largest in the minerals
industry based on published information.
Since the Company's only asset is a controlling equity interest
in NGC, the rights of the Company to participate in any distribution of
assets of NGC upon its liquidation or reorganization or otherwise (and thus
the ability of holders of the Securities to benefit from such distribution)
are subject to the prior claims of creditors of NGC, except to the extent
that the Company may itself be a creditor with recognized claims against
NGC. Claims on NGC by creditors may include claims of holders of
indebtedness and claims of creditors in the ordinary course of business.
Such claims may increase or decrease, and additional claims may be incurred
in the future.
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The Company, incorporated in 1921, under the laws of Delaware,
maintains its principal executive offices at 1700 Lincoln Street, Denver,
Colorado 80203 (telephone: 303-863-7414).
Recent Results
As set forth in the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994, the Company's net income for the six-month period
ended June 30, 1994 was $38.9 million, or $0.36 per share, compared to $90.6
million, or $0.97 per share for the six-month period ended June 30, 1993. Net
income for the six-month period ended June 30, 1993 includes a benefit of
$38.5 million, or $0.45 per share, for the cumulative effect of a change in
accounting for income taxes. Before considering the impact of the cumulative
effect for the change in accounting for income taxes, earnings for the first
six months of 1993 were $52.1 million, or $0.52 per share.
Net income for the six-month period ended June 30, 1994 includes a
tax benefit of $16.2 million resulting from the resolution of certain tax
issues associated with prior years and a $17.6 million after-tax charge to
adjust the Company's estimated liabilities and recoveries for certain
environmental cleanup costs. These items resulted in a net charge of $0.01
per share on an after-tax basis after considering the minority interest in
Newmont Gold. Net income for the six-month period ended June 30, 1993
includes a $19.3 million, or $0.22 per share, after-tax gain from the sale of
the Company's interest in Newcrest Mining of Australia.
The $17.6 million after-tax charge referred to above taken by the
Company in the second quarter of 1994 reflects an after-tax charge of $4.6
million which was taken as a result of the Company revising its estimate of
environmental cleanup costs associated with certain former mining activities.
In addition, the $17.6 million charge reflects an after-tax valuation
allowance of $13 million provided by the Company with respect to receivables
recorded for the Company's insurance recovery claims related to such
environmental cleanup costs.
The environmental cleanup costs and insurance recovery claims
referred to above relate to two Superfund lawsuits that were filed in 1983.
One of the lawsuits was settled by the Company in July 1992. A consent decree
was signed with respect to the other lawsuit in May 1994.
In connection with the litigation and settlement of the Superfund
cases, the Company has made claims under various insurance policies against
the relevant carriers for recovery of its defense and remediation costs.
Prior to 1993, three of the carriers commenced actions against the Company
seeking judgments that they had no liability. Significant discovery was
commenced only in the action relating to the Company's environmental
impairment liability ("EIL") insurance policy; the other two actions were not
aggressively prosecuted by the carriers. In the fall of 1993, the Company
instituted a comprehensive lawsuit against all of its carriers, other than the
EIL carrier. In addition, in 1993, the Company designated new lead counsel
for all the insurance recovery actions.
Based upon the views of prior lead counsel, the Company had believed
that significant progress in certain settlement discussions would have been
achieved by mid-summer of 1994, but that expectation has not been realized.
The absence of such anticipated progress in settlement discussions, as well as
the Company's discussions with the new lead counsel for the insurance recovery
actions regarding its review of such actions, caused the Company in the second
quarter of 1994 to provide the valuation allowance referred to above, thereby
reducing the net receivable with respect to the above-described insurance
claims.
RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's ratio of earnings to fixed charges for each of the
periods indicated below were as follows:
Six Months Ended June 30, Year Ended December 31,
1994 1993 1992 1991 1990 1989
1.2 6.3 6.5 10.3 6.6 2.2
The Company's ratio of earnings to combined fixed charges and
preferred stock dividends for each of the periods indicated below were as
follows:
Six Months Ended June 30, Year Ended December 31,
1994 1993 1992 1991 1990 1989
--* 3.4 5.9 10.3 6.6 2.2
______________________________
* The Company's earnings for the six-month period ended June 30, 1994 were
inadequate to cover its fixed charges and preferred stock dividends as a
result of a $27.1 million pre-tax, non-cash charge relating to environmental
cleanup costs that was taken by the Company in the quarter ended June 30,
1994. See "The Company -- Recent Results." The amount of the coverage
deficiency was $5.8 million.
<PAGE>
The ratios set forth above were calculated based on information
from the Company's books and records. In computing such ratios, "earnings"
consists of income from continuing operations before provision for income
taxes and extraordinary items with adjustments for interest expense
(excluding capitalized interest), the amortization of previously capital-
ized interest, minority interests of subsidiaries with fixed charges and
undistributed income of less than fifty percent owned affiliates. "Fixed
charges" consists of interest expense (including amortization of debt
issuance expense), capitalized interest and one-third of rental expense
(which the Company believes is a reasonable approximation of the interest
factor of such rental expense). Preferred stock dividend requirements are
computed by increasing preferred stock dividends by an amount representing
the pre-tax earnings which would be required to cover such preferred stock
dividend requirements. The Company guarantees certain third party debt
which had total interest obligations of $0.4 million, $0.8 million, $3.3
million, $4.0 million, $4.5 million and $5.0 million for the six months
ended June 30, 1994 and the years ended December 31, 1993, 1992, 1991,
1990 and 1989, respectively. The Company has not been required to pay any
of these amounts, nor does it expect to have to pay any amounts; therefore,
such amounts have not been included in the ratio of earnings to fixed
charges and the ratio of earnings to combined fixed charges and preferred
stock dividends.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Offered
Securities will be used for general corporate purposes unless otherwise set
forth in the Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital of the Company consists of 5,000,000
shares of Preferred Stock, par value $5.00 per share, issuable in series,
of which 2,875,000 shares of $5.50 Convertible Preferred Stock, par value
$5.00 per share (the "$5.50 Convertible Preferred Stock") were issued and
<PAGE>
outstanding as of March 24, 1994 and 240,000 shares of Series A Junior
Participating Preferred Stock, par value $5.00 per share (the "Junior
Preferred Shares") were reserved for issuance as of March 24, 1994, and
120,000,000 shares of Common Stock, par value $1.60 per share, of which
85,848,405 (adjusted to give effect to the 1.2481 shares to 1 share stock
split payable on April 21, 1994 to stockholders of record on March 31,
1994) were issued and outstanding as of March 24, 1994 and are fully paid
and nonassessable. Holders of the Company's capital stock have no
preemptive rights.
DESCRIPTION OF COMMON STOCK
The statements set forth below are summaries of certain
provisions relating to the Common Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation, a copy of which is filed
as an exhibit to the Registration Statement of which this Prospectus forms
a part.
Dividend Rights
Subject to the prior rights as to dividends of any Preferred
Stock which may be outstanding from time to time, the Common Stock is
entitled to such dividends as may be declared by the Board of Directors out
of funds legally available therefor.
Voting Rights
Subject to the voting rights, if any, of any Preferred Stock
which may be outstanding from time to time, all voting rights are vested in
the holders of shares of the Common Stock, each share being entitled to one
vote.
Liquidation Rights
Subject to the prior rights of creditors and the holders of any
Preferred Stock which may be outstanding from time to time, the shares of
Common Stock are entitled, in the event of voluntary or involuntary
liquidation, dissolution or winding up, to share pro rata in the
distribution of all remaining assets.
Approval of Certain Mergers, Consolidations, Sales and Leases
Article NINTH of the Company's Restated Certificate of
Incorporation provides that, with certain exceptions noted below, the
affirmative vote of the holders of four-fifths of all classes of stock of
the Company entitled to vote in elections of directors (considered as one
class) shall be required (a) for the adoption of an agreement for the
merger or consolidation of the Company with any other corporation, or (b)
to authorize any sale or lease of all or any substantial part of the assets
of the Company to, or any sale or lease to the Company or any subsidiary
thereof in exchange for securities of the Company of any assets (except
assets having an aggregate fair market value of less than $10 million) of,
any other corporation, person or entity if, in either case, such other
corporation, person or entity is the beneficial owner, directly or
indirectly, of more than 10% of all outstanding shares of stock of the
Company entitled to vote in elections of directors (a "10% Holder"). Such
affirmative vote or consent shall be in addition to the vote of the holders
of the stock of the Company otherwise required by law or any agreement
between the Company and any national securities exchange.
<PAGE>
For the purposes of Article NINTH, any corporation, person or
entity shall be deemed to be the beneficial owner of any shares of stock of
the Company (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly by
any other corporation, person or entity, with which it or its affiliates or
associates (as defined in the Restated Certificate of Incorporation) have
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of the Company, or which is its
affiliate or associate.
Article NINTH does not apply to any transaction with any other
corporation, person or entity (i) if the Board of Directors of the Company
has approved a memorandum of understanding with such other corporation,
person or entity with respect to such transaction prior to the time that
such other corporation, person or entity shall have become a 10% Holder or
(ii) in case of a corporation, if the Company and its subsidiaries own a
majority of the outstanding shares of all classes of stock entitled to vote
in elections of directors. Article NINTH can be altered or repealed only
upon the affirmative vote of the record holders of four-fifths of all
classes of stock of the Company entitled to vote in elections of directors,
considered as one class.
Article NINTH might be characterized as an anti-takeover
provision since it may render more difficult certain possible takeover
proposals to acquire control of the Company and make removal of management
of the Company more difficult.
Equal Value Rights Plan
Each outstanding share of Common Stock carries with it a dividend
distribution of one equal value right (an "Equal Value Right"). The terms
of the Equal Value Rights are set forth in a Rights Agreement, dated as of
September 23, 1987, as amended (the "Equal Value Rights Agreement"),
between the Company and Chemical Bank, as Rights Agent. The following is a
summary of the Equal Value Rights Agreement. This summary contains all
material provisions, but does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the provisions of the
Equal Value Rights Agreement. A copy of the Equal Value Rights Agreement
and the amendments thereto are filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
Each Equal Value Right entitles the record holder to receive from
the Company on or after the date of any Extraordinary Transaction (as
hereinafter defined) an amount in cash equal to the amount, if any, by
which the Equal Value Price (as hereinafter defined) exceeds the sum of the
cash consideration and the fair market value of the non-cash consideration
paid for each share of Common Stock in the Extraordinary Transaction.
Unless earlier redeemed or unless an Extraordinary Transaction has there-
tofore occurred, the Equal Value Rights will expire at the close of
business on September 23, 1997.
The term "Extraordinary Transaction" means an event in which,
within two years of the Control Date (as hereinafter defined) the Company,
directly or indirectly, effects a merger, consolidation or other
extraordinary corporate transaction in which the Common Stock is changed
into or exchanged for securities, cash or other property. The term "Equal
Value Price" means the highest price per share paid by a Controlling Person
(as hereinafter defined) for any share of Common Stock acquired by it
within 91 days prior to and including the Control Date, as such price is
adjusted pursuant to the Equal Value Rights Agreement.
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The Equal Value Rights are evidenced by the certificates
representing outstanding shares of Common Stock, and no certificates
representing the Equal Value Rights have been distributed. The Equal Value
Rights will separate from the Common Stock and an Equal Value Distribution
Date will occur on the first date of public announcement by the Company or
a person (a "Controlling Person") who, together with all Affiliates and
Associates (as each term is defined in the Equal Value Rights Agreement) of
such person, shall be the beneficial owner of securities entitled to cast
50% or more of the votes in the election of directors of the Company, that
a Controlling Person has become such (a "Control Date"). Until the Equal
Value Distribution Date, (i) the Equal Value Rights will be evidenced by
the Common Stock certificates and will be transferred with and only with
such Common Stock certificates, and (ii) the transfer of any outstanding
Common Stock certificates will also constitute the transfer of the Equal
Value Rights associated therewith.
Until an Equal Value Right is exercised, the holder thereof, as
such, has no rights as a stockholder of the Company. At any time until a
Control Date, the Company may (but only with the concurrence of a majority
of the Continuing Directors (as defined in the Equal Value Rights
Agreement)) redeem the Equal Value Rights in whole, but not in part, at a
price of $0.02 per Equal Value Right.
The Equal Value Rights may have certain anti-takeover effects in
the event that a person or group proposes to acquire the Company in a
two-tier transaction in which all stockholders do not receive the same
price for their shares.
Stockholder Rights Plan
Each outstanding share of Common Stock carries with it one
preferred share purchase right (each a "Right"). The terms of the Rights
are set forth in a Rights Agreement, dated as of August 30, 1990, as
amended (the "Rights Agreement") between the Company and Chemical Bank, as
Rights Agent. The following is a summary of the terms of the Rights
Agreement. This summary contains all material provisions, but does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, the provisions of the Rights Agreement. A copy of the
Rights Agreement and the amendments thereto are filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
Following the Distribution Date referred to below and except as
described below, each Right entitles the registered holder to purchase from
the Company one five-hundredth of a share (a "Preferred Share Fraction") of
the Series A Junior Participating Preferred Stock, par value $5.00 per
share, of the Company (the "Junior Preferred Shares"), at a purchase price
of $150 per Preferred Share Fraction, subject to adjustment (the "Purchase
Price"). Unless earlier redeemed by the Company or unless a transaction
described in Section 13(d) of the Rights Agreement has occurred, the Rights
will expire at the close of business on September 11, 2000 (the "Final
Expiration Date").
Ownership of the Rights is evidenced by the Common Stock
certificates representing shares then outstanding, and no separate
certificates representing the Rights have been distributed. The Rights
will separate from the Common Stock and a Distribution Date will occur upon
the earlier of (i) the close of business on the tenth day after the date of
a public announcement that a person (other than any Exempt Person (as
defined in the Rights Agreement)) or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common
Stock (the "Stock Acquisition Date"), or (ii) the close of business on the
tenth business day after the date of the commencement of a tender offer or
<PAGE>
exchange offer that would result in a person or entity beneficially owning
15% or more of the outstanding Common Stock. Until a Distribution Date, (i)
the Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates and (ii) the
transfer of any outstanding Common Stock certificates will also constitute
a transfer of the Rights associated therewith.
Except in the circumstances described below, after the
Distribution Date each Right will be exercisable into a Preferred Share
Fraction. Each Preferred Share Fraction carries voting and dividend rights
that are intended to produce the equivalent of one share of Common Stock,
which rights are subject to adjustment in the event of stock dividends,
subdivisions and combinations with respect to the Common Stock. In lieu of
issuing certificates for fractions of Junior Preferred Shares (other than
fractions which are integral multiples of one five-hundredth of a share),
the Company may pay cash in accordance with the Rights Agreement.
If a person becomes an Acquiring Person other than pursuant to
certain Board approved tender or exchange offers, each holder of a Right,
at any time following the Distribution Date, has the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to two times the
Purchase Price of the Right. In lieu of requiring payment of the Purchase
Price upon exercise of the Right following any such event, the Company may
provide that each Right be exchanged for one share of Common Stock (or
cash, property or other securities, as the case may be). Following the
occurrence of the event set forth in the first sentence of this paragraph,
all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be
null and void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation (other
than pursuant to certain Board approved tender or exchange offers), or (ii)
50% or more of the Company's assets or earning power is sold or trans-
ferred, each holder of a Right (except Rights that previously have been
voided as set forth above) has the right to receive, upon exercise, common
stock of the acquiring company having a value equal to two times the
Purchase Price of the Right.
The Purchase Price payable, and the number of Preferred Share
Fractions or other securities or property issuable, upon exercise of the
Rights is subject to adjustment to prevent dilution as a result of certain
events described in the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, has no
rights as a stockholder of the Company. At any time until the earlier of
(i) the Stock Acquisition Date and (ii) the Final Expiration Date (but in
certain circumstances only with the concurrence of Continuing Directors (as
defined in the Rights Agreement)), the Company has the option to redeem the
Rights in whole, but not in part, at a price of $0.01 per Right.
The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that attempts to acquire
the Company without conditioning the offer on the Rights being redeemed or
a substantial number of Rights being acquired. The Rights should not
interfere with any merger or other business combination approved by the
Board of Directors of the Company because the Rights are either redeemable
or do not go into effect under such circumstances.
DESCRIPTION OF PREFERRED STOCK
<PAGE>
The statements set forth below are summaries of certain
provisions relating to the Preferred Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation and the Certificate of
Designations for both the $5.50 Convertible Preferred Stock and the Junior
Preferred Shares described below, copies of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a part. In
addition, with respect to any particular series of Preferred Stock offered
hereby (or any series of Preferred Stock underlying Depositary Shares that
are offered hereby), the summaries set forth below of certain provisions of
the Preferred Stock are subject to, and are qualified in their entirety by,
the provisions of the Certificate of Designations relating to such
particular series of Preferred Stock, which will be filed with the
Commission at or prior to the time of the sale of such series of Preferred
Stock.
General
The Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation") authorizes the issuance of 5,000,000 shares
of Preferred Stock in one or more series. The Board of Directors has the
power to fix various terms with respect to each series of Preferred Stock,
including designations, preferences, relative rights, qualifications,
limitations and restrictions. The $5.50 Convertible Preferred Stock and
the Junior Preferred Shares that may be issued in connection with the
Company's Shareholder Rights Plan (see "Description of Common Stock --
Shareholder Rights Plan" and "Description of Preferred Stock -- Junior
Preferred Shares") are the only series of Preferred Stock that the Board of
Directors of the Company has authorized for issuance by the Company.
Offered Securities
The Preferred Stock offered hereby shall have the dividend,
liquidation, redemption, conversion and voting rights set forth below
unless otherwise provided in the Prospectus Supplement relating to a parti-
cular series of the Preferred Stock. Reference is made to the Prospectus
Supplement relating to the particular series of the Preferred Stock offered
thereby for specific terms, including: (i) the title and stated value per
share of such Preferred Stock and the number of shares offered; (ii) the
price at which such Preferred Stock will be issued; (iii) the dividend rate
(or method of calculation), the dates on which dividends shall be payable,
whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv)
any redemption or sinking fund provisions of such Preferred Stock; (v) whe-
ther or not such Preferred Stock will be convertible into shares of Common
Stock of the Company and, if so, whether such conversion is mandatory or at
the option of the holder or of the Company, the conversion price and other
terms relating thereto; and (vi) any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions of such Preferred Stock. The Preferred Stock
will, when issued, be fully paid and nonassessable.
Ranking. Unless otherwise provided in the Prospectus Supplement
relating to a particular series of Preferred Stock, each series of
Preferred Stock offered hereby will rank senior with respect to the payment
of dividends and the distribution of assets upon liquidation to any Junior
Preferred Shares and any series of Preferred Stock which by its terms is
expressly made junior to the Preferred Stock and will rank on a parity with
respect to the payment of dividends and the distribution of assets upon
liquidation with the $5.50 Convertible Preferred Stock and any other
outstanding series of Preferred Stock, other than the Junior Preferred
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Shares and any series of Preferred Stock which by its terms is expressly
made junior to the Preferred Stock offered hereby.
Dividend Rights. Out of the funds of the Company legally
available for dividends, the holders of Preferred Stock of each series will
be entitled to receive, when and as declared by the Board of Directors,
cash dividends at such rate, and payable at such times and for such
quarterly dividends periods as set forth in the Prospectus Supplement
relating to such series of Preferred Stock. Dividends on any shares of
Preferred Stock may be cumulative only if and to the extent set forth in
the Prospectus Supplement relating thereto.
No such dividend shall be paid or declared and set apart for
payment on any share of Preferred Stock for any quarterly dividend period
unless a dividend for the same quarterly dividend period and all past
quarterly dividend periods, if any, ending within such quarterly dividend
period, ratably in proportion to the respective annual dividend rates fixed
therefor, shall be or have been paid or declared and set apart for payment
on all shares of Preferred Stock of all series then outstanding and enti-
tled to receive dividends for such quarterly dividend period or for any
past quarterly dividend period, if any, ending within such quarterly
dividend period. In no event, so long as any Preferred Stock shall remain
outstanding, shall any dividend, other than a dividend payable in shares of
Common Stock or any other class of stock ranking junior to the Preferred
Stock as to the distribution of assets and the payment of dividends (the
Common Stock, and any such other class of stock being hereinafter sometimes
referred to as "junior stock"), be declared or paid upon, nor shall any
distribution be made upon, any junior stock, nor shall any shares of junior
stock be purchased or redeemed by the Company other than in exchange for
junior stock, nor shall any monies be paid or made available for a sinking
fund for the purchase or redemption of any junior stock, unless in each
instance dividends on all outstanding shares of Preferred Stock for all
past dividend periods shall have been paid and the dividend on all
outstanding shares of the Preferred Stock for the then applicable current
quarterly dividend period shall have been paid, or declared and a sum
sufficient for the payment thereof set apart.
Voting Rights. Except as indicated below or in the Prospectus
Supplement relating to a particular series of Preferred Stock, or except as
expressly required by applicable law, the holders of Preferred Stock will
not be entitled to vote. Except as indicated in the Prospectus Supplement
relating to a particular series of Preferred Stock, when and if any such
series is entitled to vote, each share in such series will be entitled to
one vote.
At any time when six quarterly dividends on any one or more
series of Preferred Stock entitled to receive cumulative dividends shall be
in default, the number of directors constituting the Board of Directors
shall be increased by two, and the holders of shares of all such cumulative
series of Preferred Stock at such time shall be entitled, voting as a
class, whether or not the holders thereof shall otherwise be entitled to
vote, to the exclusion of the holders of Common Stock and the holders of
any series of non-cumulative Preferred Stock, to vote for and elect two
members of the Board of Directors of the Company to fill such newly-created
directorships. At any time when six quarterly dividends on any one or more
series of non-cumulative Preferred Stock shall be in default, the number of
directors constituting the Board of Directors shall be increased by two,
and the holders of shares of all such non-cumulative series of Preferred
Stock at such time shall be entitled, voting as a class, whether or not the
holders thereof shall otherwise be entitled to vote, to the exclusion of
the holders of Common Stock and the holders of any series of cumulative
Preferred Stock, to vote for and elect two members of the Board of
Directors of the Company to fill such newly-created directorships. All
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rights of all series of Preferred Stock to participate in the election of
directors shall continue in effect, in the case of all series of Preferred
Stock entitled to receive cumulative dividends, until cumulative dividends
have been paid in full or set apart for payment on each cumulative series
which shall have been entitled to vote at the previous annual meeting of
stockholders, or special meeting held in place thereof, or, in the case of
all series of non-cumulative Preferred Stock, until non-cumulative
dividends have been paid in full or set apart for payment for four
consecutive quarterly dividend periods on each non-cumulative series which
shall have been entitled to vote at the previous annual meeting of
stockholders, or special meeting held in place thereof. Whenever the
holders of the Preferred Stock shall be divested of such voting right, the
directors so elected by the holders of Preferred Stock shall thereupon
cease to be directors of the Company and thereupon the number of directors
shall be reduced by two or four, as the case may be. Directors elected by
the holders of any one or more series of stock voting separately as a
class, may be removed only by a majority vote of such series, voting
separately as a class, so long as the voting power of such series shall
continue.
Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the affairs of the Company, the holders of Preferred Stock
of a particular series shall be entitled to receive, out of the assets of
the Company available for distribution to its stockholders, an amount in
cash set forth in the Prospectus Supplement relating to such series of
Preferred Stock plus, in each case, an amount equal to all dividends
accrued and unpaid on such share up to the date fixed for distribution. If
upon any such liquidation, dissolution or winding up of the Company its net
assets shall be insufficient to permit the payment in full of the
respective amounts to which the holders of all outstanding Preferred Stock
of all series are entitled, the entire remaining net assets of the Company
shall be distributed among the holders of Preferred Stock of all series in
amounts proportionate to the full amounts to which they are respectively so
entitled.
Redemption. The Company, at its option, may redeem the shares of
any series of the Preferred Stock at such time or times, at such price or
prices and on such other terms and conditions as set forth in the
Prospectus Supplement relating to such series of Preferred Stock plus, in
each case, an amount equal to all dividends accrued and unpaid on such
series of Preferred Stock to and including the date fixed for redemption.
If less than all outstanding shares of any series of Preferred Stock are to
be redeemed, the shares to be redeemed shall be chosen by lot or pro rata
in such equitable manner as the Board of Directors may determine. Notice
of every such redemption shall be mailed not less than 30 nor more than 90
days in advance of the redemption date to the holders of record of the
shares of Preferred Stock so to be redeemed at their respective addresses
as the same shall appear on the books of the Company. From and after the
redemption date (unless the Company shall default in paying or providing
the funds necessary for the payment of the redemption price of the shares
so called for redemption) the right to receive dividends on all shares of
Preferred Stock so called for redemption shall cease to accrue, and all
rights of the holders of the shares of Preferred Stock so called for
redemption shall cease and terminate, except for the right of such holders
to receive the redemption price for such shares but without interest, and
such shares shall no longer be deemed outstanding.
$5.50 Convertible Preferred Stock
General. As of March 24, 1994, a total of 2,875,000 shares of
the $5.50 Convertible Preferred Stock were issued and outstanding. All of
the outstanding shares of $5.50 Convertible Preferred Stock are held on
deposit under the Deposit Agreement, dated as of November 15, 1992 (the
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"1992 Deposit Agreement"), among the Company, Chemical Bank, as Depositary
(the "1992 Depositary"), and all holders from time to time of depositary
receipts issued thereunder (the "1992 Depositary Receipts").
Ranking. The $5.50 Convertible Preferred Stock ranks senior with
respect to the payment of dividends and the distribution of assets upon
liquidation to any Junior Preferred Shares and any series of Preferred
Stock which by its terms is expressly made junior to the $5.50 Convertible
Preferred Stock. The $5.50 Convertible Preferred Stock will rank on a par-
ity with respect to the payment of dividends and the distribution of assets
upon liquidation with any other series of Preferred Stock Junior Preferred
Shares and any series of Preferred Stock which by its terms is expressly
made junior to the Preferred Stock offered hereby.
Dividend Rights. The holders of shares of the $5.50 Convertible
Preferred Stock are entitled to receive, when, as and if declared by the
Board of Directors of the Company, out of funds of the Company legally
available for payment, cumulative dividends at an annual rate of $5.50 per
share, payable quarterly on each March 15, June 15, September 15 and Decem-
ber 15. Dividends on the $5.50 Convertible Preferred Stock accrue and are
cumulative from the date of its original issue and are payable to the
holder of record on such respective record dates as may be fixed by the
Board of Directors in advance of the payment of each dividend. After full
cumulative dividends on the $5.50 Convertible Preferred Stock for all past
and current quarterly dividend periods have been paid in full, the $5.50
Convertible Preferred Stock is not entitled to participate with the Common
Stock in any further distributions of the Company.
Unless full cumulative dividends on the $5.50 Convertible
Preferred Stock have been paid, or declared and set aside for payment, no
dividends (other than in Common Stock or any other stock ranking junior to
the $5.50 Convertible Preferred Stock as to the distribution of assets and
the payment of dividends) may be paid or declared or other distribution
made upon the Common Stock or on any other stock of the Company ranking
junior to the $5.50 Convertible Preferred Stock as to the distribution of
assets and the payment of dividends nor may any Common Stock or any other
stock of the Company ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends be
redeemed or purchased by the Company (other than in exchange for Common
Stock or any other stock ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends) or any
payment made to or available for a sinking fund for the redemption of any
share of such stock.
Voting Rights. Except for the voting rights described below and
except as otherwise provided by law, the holders of shares of $5.50
Convertible Preferred Stock are not entitled to vote on any matter or to
receive notice of, or to participate in, any meeting of stockholders of the
Company. If six quarterly dividends payable on the $5.50 Convertible
Preferred Stock, or on any other Preferred Stock entitled to receive
cumulative dividends, are in default, the number of directors of the
Company will be increased by two and the holders of all outstanding shares
of such cumulative Preferred Stock as to which such default shall exist,
voting as a single class, will be entitled to elect the additional two
directors until all such cumulative dividends have been paid in full or set
apart for payment on each cumulative series then entitled to vote.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of $5.50
Convertible Preferred Stock will be entitled to receive out of the assets
of the Company available for distribution to stockholders $100.00 per share
in cash plus accrued and unpaid dividends before any distribution is made
to the holders of the Common Stock or any other stock of the Company
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ranking junior to the $5.50 Convertible Preferred Stock as to the
distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company.
Conversion Rights. Shares of $5.50 Convertible Preferred Stock
will be convertible at any time at the option of the holder thereof into
such number of whole shares of Common Stock as is equal to the aggregate
liquidation preference of the shares of $5.50 Convertible Preferred Stock
surrendered for conversion divided by the conversion price of $36.395 per
share of Common Stock, subject to adjustment in certain events as provided
in the Certificate of Designation for the $5.50 Convertible Preferred
Stock.
Optional Redemption. The $5.50 Convertible Preferred Stock will
not be redeemable prior to November 15, 1995. Thereafter the $5.50
Convertible Preferred Stock may be redeemed, in whole or in part, at the
option of the Company, at a redemption price declining from $103.85 per
share for redemptions occurring on or after November 15, 1995 to $100.00
per share for redemptions occurring on or after November 15, 2001, plus, in
each case, accrued and unpaid dividends to and including the date fixed for
redemption.
Effect of Mergers, Consolidations, Sales and Leases. Except as
otherwise provided in the Certificate of Designations for the $5.50
Convertible Preferred Stock in the event of any recapitalization of shares
of Common Stock, any consolidation or merger of the Company with or into
another person or any merger of another person into the Company, any sale
or transfer of all or substantially all of the assets of the Company and
its consolidated subsidiaries, or any compulsory share exchange, pursuant
to any of which holders of Common Stock shall be entitled to receive other
securities, cash or other property, then appropriate provision shall be
made so that the holder of each share of $5.50 Convertible Preferred Stock
then outstanding shall have the right thereafter to convert such share at
the conversion price, subject to adjustment as provided in the Certificate
of Designation, into (except, in certain events, as otherwise provided in
the Certificate of Designation) the kind and amount of securities, cash and
other property that would have been receivable upon such transaction by a
holder of the number of shares of Common Stock issuable upon conversion of
such share of $5.50 Convertible Preferred Stock immediately prior to such
transaction.
1992 Depositary Shares. The following is a summary of the 1992
Depositary Agreement. The summary contains all material provisions, but
does not purport to be complete and is subject to, and is qualified in its
entirety by, the provisions of the 1992 Deposit Agreement, a copy of which
is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part.
Pursuant to the 1992 Deposit Agreement, depositary shares (the
"1992 Depositary Shares"), each evidencing one-half share of $5.50
Convertible Preferred Stock, were issued. As of March 24, 1994, a total of
5,750,000 1992 Depositary Shares were outstanding. Subject to the terms of
the 1992 Deposit Agreement, each owner of a 1992 Depositary Share is
entitled, in proportion to the applicable fraction of a share of $5.50
Convertible Preferred Stock represented by such 1992 Depositary Share, to
all the rights, preferences and privileges of the $5.50 Convertible
Preferred Stock represented thereby (including dividend, voting, conver-
sion, redemption and liquidation rights), and subject to all of the
limitations of the $5.50 Convertible Preferred Stock represented thereby,
contained in the Company's Restated Certificate of Incorporation and the
Certificate of Designation for the $5.50 Convertible Preferred Stock and
summarized above.
<PAGE>
The 1992 Depositary acts as transfer agent and registrar and
paying agent for the payment of dividends with respect to the 1992
Depositary Shares.
Whenever the Company redeems shares of $5.50 Convertible
Preferred Stock held by the 1992 Depositary, the 1992 Depositary will
redeem as of the same redemption date the number of 1992 Depositary Shares
representing shares of the $5.50 Convertible Preferred Stock so redeemed,
provided the Company shall have delivered to the 1992 Depositary cash
sufficient to effect a redemption of the $5.50 Convertible Preferred Stock
to be redeemed. Each 1992 Depositary Share will be redeemable for one-half
of the amount payable with respect to each share of $5.50 Convertible
Preferred Stock.
The 1992 Depositary will distribute all cash dividends or other
cash distributions received in respect of the $5.50 Convertible Preferred
Stock to the record holders of 1992 Depositary Receipts in proportion to
the number of such 1992 Depositary Shares owned by such holders on the
relevant record date. In the event of an offering to holders of $5.50
Convertible Preferred Stock of rights, preferences or privileges to
subscribe for any securities or any other rights, preferences or
privileges, the 1992 Depositary will make such rights, preferences or
privileges available to the record holders of 1992 Depositary Receipts
entitled thereto, unless the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some
or all holders of 1992 Depositary Receipts. The amount distributed in any
of the foregoing cases will be reduced by any amount required to be
withheld by the Company or the 1992 Depositary with respect to tax
liability.
Each record holder of 1992 Depositary Shares has the right, at
his option, to surrender 1992 Depositary Receipts representing one or more
whole shares of $5.50 Convertible Preferred Stock with written instructions
to the 1992 Depositary to convert a number of underlying whole shares of
$5.50 Convertible Preferred Stock which such 1992 Depositary Shares
represent into shares of the Company's Common Stock at any time. No
fractional shares of Common Stock will be issued upon conversion, and in
lieu thereof an amount will be paid in cash by the Company equal to the
market value of the fractional interest.
Upon receipt of notice of any meeting at which holders of $5.50
Convertible Preferred Stock are entitled to vote, the 1992 Depositary will
mail the information contained in such notice of meeting to the record
holders of 1992 Depositary Receipts. Each record holder of 1992 Depositary
Receipts on the record date (which will be the same date as the record date
for the $5.50 Convertible Preferred Stock) will be entitled to instruct the
1992 Depositary as to the exercise of the voting right pertaining to the
number of shares of $5.50 Convertible Preferred Stock (or fraction thereof)
represented by such holder's 1992 Depositary Shares. The 1992 Depositary
will endeavor, insofar as practicable, to vote the number of shares of
$5.50 Convertible Preferred Stock (or fraction thereof) represented by such
1992 Depositary Shares in accordance with such instructions, and the
Company has agreed to take all reasonable action which may be deemed neces-
sary by the 1992 Depositary in order to enable the 1992 Depositary to do
so. The 1992 Depositary will not vote the shares of $5.50 Convertible
Preferred Stock to the extent it does not receive specific written instruc-
tions from the holders of 1992 Depositary Receipts representing such shares
of $5.50 Convertible Preferred Stock.
The form of 1992 Depositary Receipts and any provision of the
1992 Deposit Agreement may at any time be amended by agreement between the
Company and the 1992 Depositary. However, any amendment which materially
and adversely alters the rights of holders of 1992 Depositary Receipts will
<PAGE>
not take effect unless such amendment has been approved by the holders of
at least a majority of the 1992 Depositary Shares then outstanding.
The 1992 Deposit Agreement may be terminated by the Company or
the 1992 Depositary only after (i) all outstanding 1992 Depositary Shares
have been redeemed and all shares of Common Stock, cash and other property
shall have been distributed to holders of 1992 Depositary Shares; (ii)
there has been a final distribution in respect of the $5.50 Convertible
Preferred Stock in connection with any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and such distribution
has been distributed to the holders of the 1992 Depositary Shares; or (iii)
each share of $5.50 Convertible Preferred Stock has been converted into
shares of Common Stock and all shares of Common Stock, cash and other
property have been distributed to holders of 1992 Depositary Shares.
Junior Preferred Shares
General. A total of 240,000 shares of Junior Preferred Shares
have been reserved for issuance upon exercise of the Rights. See
"Description of Common Stock -- Stockholder Rights Plan."
Dividend Rights. Each Junior Preferred Share has a preferential
quarterly dividend payable on the first day of January, April, July and
October of each year (or such other quarterly payment date as shall be
specified by the Board of Directors) in an amount equal to 500 times the
dividend (other than a stock dividend) declared on each share of Common
Stock, but in no event less than $1.00.
Voting Rights. Each Junior Preferred Share will have 500 votes,
subject to adjustment as provided in the Certificate of Designations for
the Junior Preferred Shares, on all matters submitted to a vote of the
stockholders of the Company and, except as provided in the Certificate of
Designations for the Junior Preferred Shares, the Company's Restated
Certificate of Incorporation or by law, the holders of Junior Preferred
Shares shall vote together as one class.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of
Junior Preferred Shares will receive a preferred liquidation payment per
share equal to the greater of $500 per share (plus accrued dividends to the
date of distribution, whether or not earned or declared) or an amount per
share equal to 500 times the aggregate payment made per each share of
Common Stock, in each case subject to adjustment as provided in the
Certificate of Designations for the Junior Preferred Shares.
Effect of Mergers, Consolidations, Sales and Leases. In the
event of any merger, consolidation, combination or other transaction in
which shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, each Junior Preferred Share
will be similarly exchanged or changed in an amount per share equal to 500
times the aggregate amount and type of consideration received per share of
Common Stock, subject to adjustment as provided in the Certificate of
Designations for the Junior Preferred Shares.
Ranking of Junior Preferred Shares. The Junior Preferred Shares
rank junior to all other series of the Company's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
DESCRIPTION OF DEPOSITARY SHARES
General
<PAGE>
The Company may, at its option, elect to offer fractional
interests in shares of the Preferred Stock by means of the issuance of
Depositary Shares. The shares of any series of Preferred Stock underlying
the Depositary Shares will be deposited under a separate Deposit Agreement
(the "Deposit Agreement") between the Company and a bank or trust company
selected by the Company (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and
address of the Depositary. The following statements are a summary of the
provisions of the Deposit Agreement and the depositary receipts (the
"Depositary Receipts") which evidence the Depositary Shares. The form of
Deposit Agreement and form of Depositary Receipts are filed as exhibits to
the Registration Statement of which this Prospectus forms a part. This
summary contains all material provisions, but does not purport to be
complete and is subject to, and is qualified in its entirety by, the
provisions of the Deposit Agreement and the Depositary Receipts.
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled proportionately to all the rights,
preferences and privileges of the Preferred Stock underlying such
Depositary Share (including dividend, voting, conversion, redemption and
liquidation rights), and subject to all of the limitations of the
underlying Preferred Stock, contained in the Company's Restated Certificate
of Incorporation and the Certificate of Designation for such Preferred
Stock.
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement, each of which will represent the
fractional interest in a share of a particular series of the Preferred
Stock described in the Prospectus Supplement. (Section 2.01)
Dividends
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record
holders of Depositary Receipts relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders
on the relevant record date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so
distributed shall be added to and treated as part of the next sum received
by the Depositary for distribution to holders of Depositary Shares.
(Section 4.01)
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be redeemed
from the proceeds received by the Depositary resulting from the redemption,
in whole or in part, of such series of the Preferred Stock held by the
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect
to such series of the Preferred Stock. If less than all the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected by lot by the Board of Directors. (Section 2.04)
Voting
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of
the Depositary Receipts evidencing Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Receipts on the
record date (which will be the same date as the record date for the
<PAGE>
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of
Preferred Stock (or fraction thereof) represented by the Depositary Shares
evidenced by such Depositary Receipts. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock (or
fraction thereof) represented by such Depositary Shares in accordance with
such instructions, and the Company will agree to take all action which may
be deemed necessary by the Depositary in order to enable the Depositary to
do so. The Depositary will not vote the Preferred Stock to the extent that
it does not receive specific instructions from the holders of the
Depositary Receipts evidencing Depositary Shares representing such
Preferred Stock. (Section 4.05)
Withdrawal of Preferred Stock; Conversion Rights
Unless otherwise provided in the Prospectus Supplement relating
to a series of Depositary Shares, the owner of the Depositary Shares
evidenced thereby will not be entitled to delivery of any Preferred Stock
represented by such Depositary Shares.
If the shares of Preferred Stock underlying a series of
Depositary Shares are convertible into Common Stock as provided in the
Prospectus Supplement relating to such Depositary Shares, each record
holder of Depositary Shares has the right, at his option, to surrender
Depositary Receipts representing one or more whole shares of such Preferred
Stock with written instructions to the Depositary to convert a number of
underlying whole shares of Preferred Stock which such Depositary Shares
represent into shares of the Company's Common Stock at any time. No
fractional shares of Common Stock will be issued upon conversion, and in
lieu thereof an amount will be paid in cash by the Company equal to the
market value of the fractional interest. (Section 2.05)
Amendment of Form of Depositary Receipts and of Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary; provided, however, that
any amendment which materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless such
amendment has been approved by holders of at least a majority of the
Depositary Shares then outstanding. (Section 6.01)
Charges of Depositary
The Company will pay all fees, charges and expenses of the
Depositary, except for taxes (including transfer taxes, if any),
governmental charges and such other charges as are expressly provided in
the Deposit Agreement. Holders of Depositary Shares will pay all other
transfer and other taxes and governmental charges, and, in addition, such
other charges as are expressly provided in the Deposit Agreement to be for
their accounts. (Section 5.07)
Miscellaneous
The Company, or at the option of the Company, the Depositary,
will forward to the holders of Depositary Shares all reports and
communications from the Company which the Company may be required to
furnish to the holders of the underlying Preferred Stock. (Section 5.05)
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. (Section 5.02)
The obligations of the Company and the Depositary under the Deposit
<PAGE>
Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine. (Section
5.03)
Resignation and Removal of Depositary; Termination of the Deposit Agreement
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time
remove the Depositary, any such resignation or removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment. Such successor Depositary will be appointed by the Company
within 60 days after delivery of the notice of resignation or removal. The
Deposit Agreement may be terminated at the direction of the Company or by
the Depositary only after (i) all outstanding Depositary Shares have been
redeemed or (ii) there shall have been made a final distribution with
respect to the Preferred Stock underlying such Depositary Shares in
connection with any liquidation, dissolution or winding up of the Company
and such distribution shall have been distributed to the record holders of
the Depositary Receipts, or otherwise provided for. Upon termination of
the Deposit Agreement, the Depositary will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the
holders thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under the Deposit
Agreement. Upon request of the Company, the Depositary shall deliver all
books, records, certificates evidencing Preferred Stock, Depositary
Receipts and other documents respecting the subject matter of the Deposit
Agreement to the Company. (Sections 5.04 and 6.02)
DESCRIPTION OF CONVERTIBLE DEBT SECURITIES
General
The Convertible Senior Debt Securities offered hereby will be
issuable in one or more series under an Indenture, (the "Senior Debt
Indenture"), between the Company and The Bank of New York, as Trustee. The
Convertible Subordinated Debt Securities offered hereby will be issuable in
one or more series under an Indenture (the "Subordinated Debt Indenture"),
between the Company and The Bank of New York, as Trustee. References to
the "Trustee" shall mean The Bank of New York as trustee under the Senior
Debt Indenture and/or the Subordinated Debt Indenture, as applicable. The
Senior Debt Indenture and the Subordinated Debt Indenture are each
sometimes referred to herein individually as the "Indenture" and are
referred to herein collectively as the "Indentures." The following
statements are a summary of certain provisions of the Trust Indenture Act
of 1939, as amended (the "TIA"), and the Indentures, the forms of which are
filed as exhibits to the Registration Statement of which this Prospectus
forms a part. This summary contains all material provisions, but does not
purport to be complete and is subject to, and is qualified in its entirety
by, the provisions of the TIA and the Indentures. Wherever references are
made to particular provisions of the Indentures or terms defined in the
Indentures are referred to, such provisions or definitions are incorporated
by reference as part of the statements made, and such statements are
qualified in their entirety by such references.
The aggregate principal amount of Convertible Debt Securities
which can be issued under the Indentures is unlimited. Except as otherwise
provided in the Prospectus Supplement relating to a particular series of
Convertible Debt Securities, neither of the Indentures limit the amount of
<PAGE>
other debt, secured or unsecured, which may be issued by the Company. The
Convertible Debt Securities may be issued in one or more series, as may be
authorized from time to time by the Company. (Section 2.4)
Reference is made to the Prospectus Supplement relating to the
particular series of Convertible Debt Securities offered hereby (the
"Offered Convertible Debt Securities") for the following terms, where
applicable, of the Offered Convertible Debt Securities: (1) the designa-
tion (including whether the Offered Convertible Debt Securities are
Convertible Senior Debt Securities or Convertible Subordinated Debt
Securities), the aggregate principal amount and the authorized
denominations of the Offered Convertible Debt Securities; (2) the
percentage of principal amount at which the Offered Convertible Debt
Securities will be issued; (3) the currency or currencies in which the
principal of and interest, if any, on the Offered Convertible Debt
Securities will be payable; (4) the date or dates on which the Offered
Convertible Debt Securities will mature; (5) the rate or rates at which the
Offered Convertible Debt Securities will bear interest, if any, or the
method by which such rate or rates will be determined; (6) the dates on
which and places at which such interest, if any, will be payable; (7) the
terms of any mandatory or optional repayment or redemption (including any
sinking fund); (8) the terms and conditions upon which conversion will be
effected, including the conversion price and the conversion period; (9) any
index used to determine the amount of payments of principal of and/or
interest, if any, on such Offered Convertible Debt Securities; (10) the
payment of any additional amounts with respect to the Offered Convertible
Debt Securities; (11) whether any Offered Convertible Debt Securities will
be issued as discounted Debt Securities; and (12) any other terms of the
Offered Convertible Debt Securities. Each of the Indentures provides that
Convertible Debt Securities of a single series may be issued at various
times, with different maturity dates and redemption and repayment provi-
sions, if any, and may bear interest at different rates. (Section 2.4)
Interest, if any, on the Offered Convertible Debt Securities is to be
payable to the persons, and in the manner, specified in the Prospectus
Supplement relating to such Offered Convertible Debt Securities. Unless
otherwise specified in the applicable Prospectus Supplement, the
Convertible Debt Securities will not be listed on any securities exchange.
The Convertible Senior Debt Securities will be unsecured, unsub-
ordinated indebtedness of the Company and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The
Convertible Subordinated Debt Securities will be unsecured indebtedness of
the Company and, as set forth below under "Subordination of Convertible
Subordinated Debt Securities," will be subordinated in right of payment to
all Senior Indebtedness. As of March 31, 1994, Senior Indebtedness of the
Company on a consolidated basis aggregated approximately $278 million.
Some of the Convertible Debt Securities may be issued as
discounted Convertible Debt Securities (bearing no interest or interest at
a rate which at the time of issuance is below market rates) to be sold at a
substantial discount below their stated principal amount. Federal income
tax consequences and other special considerations applicable to any such
discounted Convertible Debt Securities will be described in the Prospectus
Supplement relating thereto.
The Prospectus Supplement for a particular series may indicate
terms for redemption at the option of a holder. Unless otherwise indicated
in the Prospectus Supplement, the covenants contained in each of the
Indentures and the Convertible Debt Securities would not provide for
redemption at the option of a holder nor necessarily afford holders
protection in the event of a highly leveraged or other transaction that may
adversely affect holders.
<PAGE>
Conversion Rights
Convertible Debt Securities of any series will be convertible
into Common Stock. The terms of such conversion will be set forth in the
Prospectus Supplement relating thereto. Such terms shall include the
initial conversion rate (subject to adjustment in certain events as
provided in each of the Indentures), whether conversion is mandatory, at
the option of the holder or at the option of the Company.
Global Notes, Delivery and Form
If so provided in the Prospectus Supplement accompanying this
Prospectus, the Convertible Debt Securities may be issued in the form of
one or more fully registered Global Notes that will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York (the
"Depository") (or such other depository as may be specified in such
Prospectus Supplement) and registered in the name of the Depository's
nominee. The Depository currently limits the maximum denomination of any
single Global Note to $150,000,000. Unless otherwise provided in the
Prospectus Supplement, "Global Note" refers to the Global Note or Global
Notes representing an entire issue of Convertible Debt Securities. The
information in this section concerning the Depository and its book-entry
system has been obtained from the Depository. The Company takes no
responsibility for the accuracy thereof.
Except as set forth below, a Global Note may be transferred in
whole and not in part, only to another nominee of the Depository or to a
successor of the Depository or its nominee.
The Depository has advised that: it is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depository holds
securities for its participating organizations (collectively, the
"Participants") and facilitates the clearance and settlement of
transactions in such securities between Participants through electronic
book-entry changes in accounts of its Participants, thereby eliminating the
need for physical movement of securities certificates. Participants
include securities brokers and dealers, banks and trust companies, clearing
corporations and certain other organizations. Access to the Depository's
system is also available to other such banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, "indirect
participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of the Depository only through Participants
or indirect participants. The Rules applicable to the Depository and its
Participants are on file with the Commission.
The Depository also has advised that pursuant to procedures
established by it (i) upon delivery to the Depositary of a Global Note, the
Depository will credit the accounts of Participants designated by the
Underwriter or Underwriters, if any, with the principal amount of the
Convertible Debt Securities purchased by such Underwriter or Underwriters,
and (ii) ownership of beneficial interests in a Global Note will be shown
on, and the transfer of the ownership thereof will be effected only
through, records maintained by the Depository (with respect to
Participants), the Participants (with respect to indirect participants and
certain beneficial owners) and the indirect participants (with respect to
all other beneficial owners). The laws of some states require that certain
persons take physical delivery in definitive form of securities which they
<PAGE>
own. Consequently, the ability to transfer beneficial interests in a
Global Note is limited to such extent.
So long as a nominee of the Depository is the registered owner of
a Global Note, such nominee for all purposes will be considered the sole
owner or holder of such Convertible Debt Securities under the respective
Indenture. Except as provided below, owners of beneficial interests in a
Global Note will not be entitled to have Convertible Debt Securities
registered in their names, will not receive or be entitled to receive
physical delivery of Convertible Debt Securities in definitive form, and
will not be considered the owners or holders thereof under such Indenture
for any purpose, including with respect to the giving of any directions,
instructions or approval to the Trustee thereunder. However, the
Depository has advised that pursuant to its customary practice with respect
to the giving of consents and votes, it will deliver an omnibus proxy to
the Trustee assigning the related holder's voting rights to the Participant
to whose account the Convertible Debt Securities are credited on the record
date, attached to which proxy will be a list of Participants' positions in
the relevant security as of the record date for a consent or vote.
Neither the Company, the Trustee, any paying agent nor any
registrar of the Convertible Debt Securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Note, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Principal and interest payments on the Convertible Debt
Securities registered in the name of the Depository's nominee will be made
in immediately available funds to the Depository's nominee as the
registered owner of the Global Note. Under the terms of each of the
Indentures, the Company and the Trustee will treat the persons in whose
names the Convertible Debt Securities are registered as the owners of such
Convertible Debt Securities for the purpose of receiving payment of
principal and interest on such Convertible Debt Securities and for all
other purposes whatsoever. Therefore, neither the Company, the Trustee nor
any payment agent has or will have any responsibility or liability for the
payment of principal or interest on the Convertible Debt Securities to
owners of beneficial interests in a Global Note or for any other matter
with respect to such owners.
The Depository has advised the Company and the Trustee that its
current practice is, upon receipt of any payment of principal or interest,
to immediately credit the accounts of the Participants with such payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interests in a Global Note as shown in the records of the
Depository unless the Depository has reason to believe that it will not
receive payment on payable date. The Depository's current practice is to
credit such accounts, as to interest, in next-day funds and, as to
principal, in same-day funds. Payments by Participants and indirect
participants to owners of beneficial interests in a Global Note will be
governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of the
Participants or indirect participants and not of the Depository, the
Company or the Underwriter or Underwriters, if any, subject to any
statutory or regulatory requirement as may be in effect from time to time.
Although the Depository has agreed to the foregoing procedures in
order to facilitate transfers of beneficial interest in a Global Note
between participants, it is under no obligation to perform or continue to
perform such procedures and such procedures may be discontinued at any
time. If one or more Global Notes are outstanding and if the Depository is
<PAGE>
at any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 90 days, the Company will
issue Convertible Debt Securities in definitive form in exchange for a
Global Note. In addition, the Company may at any time determine not to
have the Convertible Debt Securities represented by a Global Note and, in
such event, will issue Convertible Debt Securities in definitive form in
exchange for a Global Note. In either instance, an owner of a beneficial
interest in a Global Note will be entitled to have Convertible Debt
Securities equal in principal amount to such beneficial interest registered
in its name and will be entitled to physical delivery of such Convertible
Debt Securities in definitive form. Convertible Debt Securities so issued
in definitive form will be issued in denominations of $1,000 and integral
multiples thereof, in registered form only, without coupons, and the
Company will maintain in the Borough of Manhattan, the City of New York,
one or more offices or agencies where such Notes may be presented for
payment and may be transferred or exchanged. No service charge will be
made for any transfer or exchange of such Global Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge or payment in connection therewith.
Same-Day Settlement in respect of Global Notes
Secondary trading in definitive long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds.
In contrast, Global Notes held by the Depository will trade in the
Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Notes will therefore be required by the
Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available
funds on trading activity in such Notes.
Certain Covenants
Certain Definitions Applicable to Covenants. "Attributable
Debt" shall mean, as to any particular lease under which the Company is at
the time liable, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by the Company
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice presi-
dent, the treasurer, the controller or the secretary of the Company)
compounded semiannually. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable
by the lessee with respect to such period, after excluding amounts required
to be paid on account of maintenance and repairs, insurance, taxes, assess-
ments, water rates and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets (less applicable reserves and other properly deductible
items) after deducting therefrom (i) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of
the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding current maturities
of long-term indebtedness and capital lease obligations) and (ii) all
goodwill, all as shown in the most recent consolidated balance sheet of the
Company and its Subsidiaries computed in accordance with generally accepted
accounting principles.
<PAGE>
"Funded Debt" shall mean all indebtedness for money borrowed
having a maturity of more than 12 months from the date as of which the
amount thereof is to be determined or having a maturity of less than 12
months but by its terms being renewable or extendible beyond 12 months from
such date at the option of the borrower.
"Principal Property" shall mean any mine, together with any
fixtures comprising a part thereof, and any plant or other facility,
together with any land upon which such plant or other facility is erected
and fixtures comprising a part thereof, used primarily for mining or pro-
cessing, in each case located in the United States of America and the net
book value of which on the date as of which the determination is being made
exceeds 5% of Consolidated Net Tangible Assets; provided, however, that
Principal Property shall not include (i) any mine, plant or facility which,
in the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its
Subsidiaries as an entirety or (ii) any portion of a particular mine, plant
or facility which, in the opinion of the Company, is not of material
importance to the use or operation of such mine, plant or facility.
"Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all of the property of which is located, or substantially all
of the business of which is carried on, within the United States of America
and (ii) which owns a Principal Property; provided, however, that
Restricted Subsidiary shall not include any Subsidiary the primary business
of which consists of financing operations in connection with leasing and
conditional sales transactions on behalf of the Company and its
Subsidiaries, and/or purchasing accounts receivable and/or making loans
secured by accounts receivable or inventory, or which is otherwise
primarily engaged in the business of a finance company.
"Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly
owned by the Company, or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. (Section 1.1)
Limitation on Liens. For the benefit of each series of
Convertible Debt Securities issued under each of the Indentures, other than
any series of Convertible Subordinated Debt Securities issued under the
Subordinated Debt Indenture with respect to which series it is explicitly
provided otherwise in the Prospectus Supplement relating to such series
("Excluded Series"), the Company will not, nor will it permit any
Restricted Subsidiary to, incur, issue, assume or guarantee any indebt-
edness for money borrowed or any other indebtedness evidenced by notes,
bonds, debentures or other similar evidences of indebtedness for money
borrowed (hereinafter called "Debt") if such Debt is secured by pledge of,
or mortgage, deed of trust or other lien on any Principal Property owned by
the Company or any Restricted Subsidiary, or any shares of stock or Debt of
any Restricted Subsidiary (such pledges, mortgages, deeds of trust and
other liens being hereinafter called "Mortgage" or "Mortgages"), without
effectively providing that the Convertible Debt Securities of all series
(together with, if the Company shall so determine, any other Debt of the
Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Convertible Debt Securities) shall be
secured equally and ratably with (or prior to) such secured Debt, so long
as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate principal amount of all such secured Debt which
would otherwise be prohibited, plus all Attributable Debt of the Company
and its Restricted Subsidiaries in respect of sale and leaseback
<PAGE>
transactions (as defined below) which would otherwise be prohibited by the
covenant limiting sale and leaseback transactions described below would not
exceed the sum of 10% of Consolidated Net Tangible Assets; provided,
however, that these restrictions shall not apply to, and there shall be
excluded from secured Debt in any computation under these restrictions,
Debt secured by: (i) Mortgages on property of, or on any shares of stock
or Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (ii) Mortgages to secure indebtedness of any
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(iii) Mortgages for taxes, assessments or governmental charges or levies in
each case (a) not then due and delinquent or (b) the validity of which is
being contested in good faith by appropriate proceedings, and material-
men's, mechanics', carriers', workmen's, repairman's, landlord's or other
like Mortgages, or deposits to obtain the release of such Mortgages;
(iv) Mortgages arising under an order of attachment or distraint or similar
legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith; (v) Mortgages to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or to
secure (or in lieu of) surety or appeal bonds and Mortgages made in the
ordinary course of business for similar purposes; (vi) Mortgages in favor
of the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute (including Debt of the
Pollution Control or Industrial Revenue Bond type) or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
Mortgages; (vii) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition of such property by the Company or the Restricted
Subsidiary (including acquisition through merger or consolidation or
through purchase, transfer of the properties of a corporation as an
entirety or substantially as an entirety) or to secure the payment of all
or any part of the purchase price or construction cost or improvement cost
thereof or to secure any Debt incurred prior to, at the time of, or within
one year after, the acquisition of such property or shares or Debt or the
completion of any such construction (including any improvements on an
existing property) or the commencement of commercial operation of such
property, whichever is later, for the purpose of financing all or any part
of the purchase price or construction cost thereof; (viii) Mortgages
existing at the date of such Indenture; and (ix) any extension, renewal or
replacement (or successive extensions, renewals or replacements), as a
whole or in part, of any Mortgage referred to in the foregoing clauses (i)
to (viii), inclusive; provided, however, that (a) such extension, renewal
or replacement Mortgage shall be limited to all or a part of the same
property, shares of stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property) and (b) the Debt
secured by such Mortgage at such time is not increased; and provided
further, that these restrictions shall not apply to (i) any gold-based loan
or forward sale arrangement and (ii) Mortgages on property owned or leased
by the Company or any Restricted Subsidiary or in which the Company or any
Restricted Subsidiary owns an interest to secure the Company's or a
Restricted Subsidiary's proportionate share of any payments required to be
made to any Person incurring the expense of developing, exploring, or
conducting operations for the recovery, processing or sale of the mineral
resources of such owned or leased property, and any such loan, arrangement
or payment referred to in clauses (i) and (ii) of this proviso shall not be
deemed to constitute secured Debt and, shall not be included in any
computation under these restrictions. (Section 3.4)
<PAGE>
Limitation on Sales and Leasebacks. For the benefit of each
series of Convertible Debt Securities issued under each of the Indentures
other than any Excluded Series issued under the Subordinated Debt
Indenture, the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company
or other lender or investor (not including the Company or any Restricted
Subsidiary), or to which any such lender or investor is party, providing
for the leasing by the Company or any such Restricted Subsidiary for a
period, including renewals, in excess of three years, of any Principal
Property owned by the Company or such Restricted Subsidiary which has been
or is to be sold or transferred more than 270 days after the acquisition
thereof or after the completion of construction and commencement of full
operation thereof, by the Company or any such Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal
Property (herein referred to as a "sale and leaseback transaction") unless
either: (i) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the Convertible
Debt Securities of all series pursuant to the provisions of the covenant on
limitation on liens described above (which provisions include the
exceptions set forth in clauses (i) through (ix) of such covenant) or (ii)
the Company, within 180 days after the sale or transfer shall have been
made by the Company or by any such Restricted Subsidiary, applies an amount
equal to the greater of (a) the net proceeds of the sale of the Principal
Property sold and leased back pursuant to such arrangement or (b) the fair
market value of the Principal Property so sold and leased back at the time
of entering into such arrangement (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice
president, the treasurer, the controller or the secretary of the Company)
to (x) the purchase of property, facilities or equipment (other than the
property, facilities or equipment involved in such sale) having a value at
least equal to the net proceeds of such sale or (y) the retirement of
Funded Debt of the Company or any Restricted Subsidiary; provided, however,
that the amount required to be applied to the retirement of Funded Debt of
the Company shall be reduced by (a) the principal amount of any Convertible
Debt Securities of any series (or, if the Convertible Debt Securities of
any series are original issue discount Convertible Debt Securities, such
portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 4.1 of
such Indenture or if the Convertible Debt Securities of any series provide
that an amount other than the face thereof will or may be payable upon the
maturity thereof or a declaration of acceleration of the maturity thereof,
such amount as may be due and payable with respect to such securities
pursuant to a declaration in accordance with Section 4.1 of the Indenture)
delivered within 180 days after such sale or transfer to the Trustee for
retirement and cancellation and (b) the principal amount of Funded Debt,
other than the Convertible Debt Securities of any series, voluntarily
retired by the Company within 180 days after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this clause
(ii) may be effected by payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision. (Section 3.5)
Consolidation, Merger, Sale, Conveyance and Lease. Each of the
Indentures permits the Company to consolidate or merge with or into any
other entity or entities, or to sell, convey or lease all or substantially
all of its property to any other entity; provided, however, (i) that the
person (if other than the Company) formed by such consolidation, or into
which the Company is merged or which acquires or leases substantially all
of the property of the Company, expressly assumes the Company's obligations
on the Convertible Debt Securities and under such Indenture and (ii) that
the Company or such successor entity shall not immediately after such
<PAGE>
consolidation or merger, or such sale, conveyance or lease, be in default
in the performance of any covenant or condition of such Indenture.
(Article Eight)
Events of Default, Waiver and Notice
As to any series of Convertible Debt Securities, an Event of
Default is defined in each of the Indentures as (a) default in the payment
of any installment of interest, if any, on the Convertible Debt Securities
of such series and the continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (and premium, if any, on)
any of the Convertible Debt Securities of such series when due, whether at
maturity, upon redemption, by declaration or otherwise; (c) default in the
payment of a sinking fund installment, if any, on the Convertible Debt
Securities of such series; (d) default by the Company in the performance of
any other covenant or agreement contained in such Indenture for the benefit
of such series and the continuance of such default for a period of 90 days
after written notice as provided in such Indenture; (e) certain events of
bankruptcy, insolvency and reorganization of the Company; and (f) any other
Event of Default established with respect to Convertible Debt Securities of
that series. (Sections 2.4 and 4.1)
The Trustee shall, within 90 days after the occurrence of a
default with respect to Convertible Debt Securities of any series, give all
holders of Convertible Debt Securities of such series then outstanding
notice of all uncured defaults known to it (the term default to mean the
event specified above without grace periods); provided that, except in the
case of a default in the payment of principal (and premium, if any) or
interest, if any, on any Convertible Debt Security of any series, or in the
payment of any sinking fund installment with respect to Convertible Debt
Securities of any series, the Trustee shall be protected in withholding
such notice if it in good faith determines that the withholding of such
notice is in the interest of all holders of Convertible Debt Securities of
such series then outstanding. (TIA)
Each of the Indentures provides that if an Event of Default with
respect to Convertible Debt Securities of any series at the time
outstanding shall occur and be continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount (calculated as
provided in such Indenture) of the Convertible Debt Securities of such
series then outstanding may declare the principal (or, in the case of
original issue discount Convertible Debt Securities, the portion thereof as
may be specified in the Prospectus Supplement relating to such series) of
the Convertible Debt Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately. (Section 4.1)
Upon certain conditions such declarations may be annulled and
past defaults (except for defaults in the payment of principal (or premium,
if any) or interest, if any, on such Convertible Debt Securities not
theretofore cured) may be waived by the holders of not less than a majority
in aggregate principal amount (calculated as provided in each of the
Indentures) of the Convertible Debt Securities of such series then out-
standing. (Section 4.9)
Under each of the Indentures, the Company is required to file
with the Trustee annually a statement by certain officers of the Company to
the effect that to the best of their knowledge the Company is not in
default in the fulfillment of any of its obligations under such Indenture
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default. (Section 3.9). Each of the Indentures
further requires that the Company file with the Trustee written notice of
the occurrence of any default or Event of Default thereunder within five
<PAGE>
business days of its becoming aware of any such default or Event of
Default. (Section 3.6)
Each of the Indentures provides that, if a default or an Event of
Default shall have occurred and be continuing, the holders of not less than
a majority in aggregate principal amount (calculated as provided in such
Indenture) of the Convertible Debt Securities of such affected series then
outstanding (with each such series voting separately as a class) shall have
the right to direct the time, method and place of conducting any proceeding
or remedy available to the Trustee, or exercising any trust of power
conferred on the Trustee by such Indenture with respect to Convertible Debt
Securities of such series. (Section 4.8)
Each of the Indentures provides that the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by such
Indenture at the direction of the holders of Convertible Debt Securities
unless such holders shall have offered to the Trustee reasonable security
or indemnity against expenses and liabilities. (Section 5.1(d))
Subordination of Convertible Subordinated Debt Securities
The obligation of the Company to make payment on account of the
principal of, and premium, if any, and interest, if any, on the Convertible
Subordinated Debt Securities will be subordinated and junior in right of
payment, as set forth in the Convertible Subordinated Debt Indenture, to
the prior payment in full of all Senior Indebtedness.
"Senior Indebtedness" means all the principal, premium, if any,
accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceeding), of Indebtedness of the Company, whether any such Indebtedness
exists as of the date of the Subordinated Debt Indenture or shall
thereafter be created, incurred, assumed or guaranteed by the Company,
other than the following: (1) any Indebtedness as to which, in the
instrument evidencing such Indebtedness or pursuant to which such
Indebtedness was issued, it is expressly provided that such Indebtedness is
subordinate in right of payment to all Indebtedness of the Company not
expressly subordinated to such Indebtedness; (2) any Indebtedness which by
its terms refers explicitly to the Convertible Subordinated Debt Securities
and states that such Indebtedness shall not be senior, shall be pari passu
or shall be subordinated in right of payment to the Convertible
Subordinated Debt Securities; and (3) with respect to any series of
Convertible Subordinated Debt Securities, any Indebtedness of the Company
evidenced by Convertible Subordinated Debt Securities of the same or of
another series. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include Indebtedness of the Company to a
subsidiary of the Company. (Section 1.1 of the Convertible Subordinated
Debt Indenture). "Indebtedness," when used with respect to the Company,
means, (i) indebtedness of the Company for money borrowed, (ii) guarantees
by the Company of indebtedness for money borrowed by any other person,
(iii) indebtedness of the Company evidenced by notes, debentures, bonds or
other similar instruments of indebtedness for payment of which the Company
is responsible or liable, by guarantees or otherwise (including purchase
money obligations), but shall not include any amounts owed to trade
creditors in the ordinary course of business and (iv) any deferral,
amendment, renewal, extension, supplement or refunding of any liability of
the kind described in any such indebtedness and guarantees. (Section 1.1
of the Subordinated Debt Indenture)
No payment or distribution shall be made by the Company on
account of principal of (or premium, if any) or interest, if any, on the
Convertible Subordinated Debt Securities, whether upon stated maturity,
<PAGE>
upon redemption or acceleration, or otherwise, or on account of the
purchase or other acquisition of the Convertible Subordinated Debt
Securities, whether upon stated maturity, upon redemption or acceleration,
or otherwise, if there exists a default in the payment of all or any
portion of principal of, premium, if any, or interest on any Senior
Indebtedness when due and the Trustee has received written notice thereof
from the indenture trustee or other trustee, agent or representative for
the respective issue of Senior Indebtedness (the "Representative"), and
such default shall not have been cured or waived or the benefits of this
sentence waived by or on behalf of the holders of such Senior Indebtedness.
In addition, if there shall have occurred and be continuing a default
(other than a default described in the preceding sentence) with respect to
any Senior Indebtedness pursuant to which the maturity thereof may be
accelerated (without further notice and after the expiration of any
applicable grace periods) and upon receipt by the Trustee of written notice
of such default from the Representative of such Senior Indebtedness (the
"Payment Notice"), the Company shall not make any payments on the
Convertible Subordinated Debt Securities until the earlier of (x) 179 days
after the date on which a Payment Notice has been given and (y) the date,
if any, on which the Trustee receives written notice from the
Representative who delivered the Payment Notice, that such default is cured
or waived or has ceased to exist or the related Senior Indebtedness is
discharged ("Payment Blockage Period"). No more than one Payment Notice is
permitted for any one default on Senior Indebtedness (which shall not bar
subsequent Payment Notices for other such defaults). All defaults on
Senior Indebtedness occurring within a 30-day period shall be treated as
one default on such Senior Indebtedness for purposes of the preceding
sentence. Notwithstanding the foregoing, no more than one Payment Blockage
Period may be commenced with respect to the Convertible Subordinated Debt
Securities during any 360-day period. A failure to make any payment with
respect to the Convertible Subordinated Debt Securities as a result of the
foregoing provisions will not limit the right of the holders of the
Convertible Subordinated Debt Securities to accelerate the maturity thereof
as a result of such payment default. (Section 12.3 of the Subordinated
Debt Indenture).
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding up or liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full,
or payment thereof provided for to the satisfaction of the holders thereof,
before any payment or distribution will be made on account of the
redemption price or principal of (and premium, if any) or interest, if any,
on the Convertible Subordinated Debt Securities.
By reason of such subordination, in the event of liquidation or
insolvency of the Company, creditors of the Company who are holders of
Senior Indebtedness may recover more, ratably, than the holders of the
Convertible Subordinated Debt Securities.
Defeasance
Defeasance and Discharge. Each of the Indentures provides that
the Company will be discharged from any and all obligations in respect of
the Convertible Debt Securities of any series (except for certain
obligations to register the transfer or exchange of Convertible Debt
Securities of such series, to replace stolen, lost or mutilated Convertible
Debt Securities of such series, to maintain paying agencies and to hold
monies for payment in trust) upon the deposit with the Trustee, in trust,
of money and/or U.S. Government Obligations (as defined in such Indenture)
which through the payment of interest and principal in respect thereof in
<PAGE>
accordance with their terms will provide money in an amount sufficient to
pay the principal of and each installment of interest on the Convertible
Debt Securities of such series on the stated maturity of such payments in
accordance with the terms of the Indenture under which the Convertible Debt
Securities of such series were issued and the terms of the Convertible Debt
Securities of such series. (Sections 9.6 and 9.8) Such a trust may only
be established if, among other things, the Company delivers to the Trustee
an opinion of counsel (who may be counsel to the Company) stating that
either (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (ii) since the date of the
relevant Indenture there has been a change in the applicable Federal income
tax law, to the effect that holders of the Convertible Debt Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such defeasance had not occurred.
(Section 9.8)
Defeasance of Certain Covenants and Certain Events of Default.
Each of the Indentures provides that the Company may omit to comply with
the covenants regarding limitations on sale and leaseback transactions and
limitations on liens described above and Section 4.1(d) of such Indenture
(described in clause (d) under the caption "Events of Default" above),
which noncompliance shall not be deemed to be an Event of Default under
such Indenture and the Convertible Debt Securities of a series issued
thereunder, upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of and each installment
of interest on the Convertible Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of such Indenture
and the Convertible Debt Securities of such series. The obligations of the
Company under such Indenture and the Convertible Debt Securities of such
series, other than with respect to the covenants referred to above, and the
Events of Default, other than the Event of Default referred to above, shall
remain in full force and effect. (Sections 9.7 and 9.8) Such a trust may
only be established if, among other things, the Company has delivered to
the Trustee an opinion of counsel (who may be counsel to the Company) to
the effect that the holders of the Convertible Debt Securities of such
series will not recognize income, gain, or loss for Federal income tax
purposes as a result of such defeasance of certain covenants and Events of
Default and will be subject to Federal income tax on the same amounts and
in the same manner and at the same times, as would have been the case if
such deposit and defeasance had not occurred. (Section 9.8)
In the event the Company exercises its option, with respect to
the Convertible Debt Securities of a series, to omit compliance with
certain covenants of the Indenture under which the Convertible Debt
Securities of such series were issued, as described in the preceding
paragraph, the Convertible Debt Securities of such series are declared due
and payable because of the occurrence of any Event of Default other than an
Event of Default described in clause (d) under the caption "Events of
Default" above, the amount of money and U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the
Convertible Debt Securities of such series at the time of their stated
maturity but may not be sufficient to pay amounts due on the Convertible
Debt Securities of such series at the time of the acceleration resulting
from such Event of Default.
Modification of the Indentures
Each of the Indentures contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than a
<PAGE>
majority in aggregate principal amount (calculated as provided in such
Indenture) of the outstanding Convertible Debt Securities of all series
affected by such modification (all such series voting as a single class),
to modify such Indenture or any supplemental indenture or the rights of the
holders of the Convertible Debt Securities; provided that no such modi-
fication shall (i) extend the fixed maturity of any Convertible Debt
Security, or reduce the principal or premium amount thereof, or reduce the
rate or extend the time of payment of interest, if any, thereon, or make
the principal amount thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the Convertible
Debt Security, or reduce the portion of the principal amount of an original
issue discount Convertible Debt Security (or a Convertible Debt Security
that provides that an amount other than the face amount thereof will or may
be payable upon a declaration of acceleration of the maturity thereof) due
and payable upon acceleration of the maturity thereof or the portion of the
principal amount thereof provable in bankruptcy, or reduce any amount
payable upon redemption of any Convertible Debt Security, or reduce the
overdue rate thereof, or impair, if the Convertible Debt Securities provide
therefor, any right of repayment at the option of the holder of a
Convertible Debt Security, without the consent of the holder of each
Convertible Debt Security so affected, or (ii) reduce the aforesaid
percentage of Convertible Debt Securities the consent of the holders of
which is required for any such modification, without the consent of the
holder of each Convertible Debt Security so affected. (Section 7.2)
Each of the Indentures also permits the Company and the Trustee
to amend such Indenture in certain circumstances without the consent of the
holders of any Convertible Debt Securities to evidence the merger of the
Company or the replacement of the Trustee and for certain other purposes.
(Section 7.1)
Concerning the Trustee
Except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in each of the
Indentures. During the continuance of any Event of Default, the Trustee
shall exercise such of the rights and powers vested in it under such
Indenture and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. (TIA)
The Trustee may acquire and hold Securities and, subject to
certain conditions, otherwise deal with the Company as if it were not
Trustee under such Indenture. (Section 5.3)
NGC currently conducts banking transactions with the Trustee in
the ordinary course of the NGC's business.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, evidenced by warrant certificates
(the "Warrant Certificates") for the purchase of Common Stock. Warrants
may be issued together with or separately from, any Securities offered by
any Prospectus Supplement and, if issued together with Securities, may be
attached to or separate from such Securities. The Warrants are to be
issued under one or more separate Warrant Agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as Warrant Agent, all as set forth in the Prospectus Supplement
relating to the particular issue of Warrants. The Warrant Agent will act
solely as an agent of the Company in connection with the Warrants and will
not assume any obligation or relationship of agency or trust for or with
any holders of Warrants or beneficial owners of Warrants. The statements
<PAGE>
set forth below are summaries of certain provisions of the Warrants and the
Warrant Agreements and are subject to the detailed provisions of the
Warrant Agreement. These summaries contain all material provisions, but do
not purport to be complete and are subject to, and are qualified in their
entirety by, all the provisions of the Warrants and the Warrant Agreement,
copies of which are filed as exhibits to the Registration Statement.
General
If Warrants are offered, reference is made to the Prospectus
Supplement which accompanies this Prospectus for a description of the
specific terms of the Warrants being offered thereby, including (i) the
specific designation and aggregate number of such Warrants, (ii) the
offering price and the currency or composite currencies for which Warrants
may be purchased, (iii) the aggregate amount of Common Stock purchasable
upon exercise of the Warrants, (iv) if applicable, the designation and
terms of the Securities with which the Warrants are issued, (v) if
applicable, the date on and after which the Warrants and the related
Securities will be separately transferable, (vi) the amount of Common Stock
purchasable upon exercise of one Warrant and the price or the manner of
determining the price and currency or composite currencies or other
consideration (which may include Securities) for which such amount of
Common Stock may be purchased upon such exercise, (vii) the date on which
the right to exercise the Warrants shall commence and the date on which
such right shall expire (the "Expiration Date"), (viii) the terms of any
mandatory or optional redemption by the Company, (ix) certain Federal
income tax consequences, (x) whether the Warrant Certificates will be
issued in registered or unregistered form, and (xi) any other special terms
pertaining to such Warrants. Unless otherwise specified in the applicable
Prospectus Supplement, the Warrants will not be listed on any securities
exchange.
Warrant Certificates may be exchanged for new Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer and change and may be exercised at
an office or agency of the Warrant Agent maintained for that purpose. No
service charge will be made for any transfer or exchange of Warrant
certificates, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 1.05 of the Warrant Agreement) Prior to the exercise of their
Warrants, holders of Warrants will not have any of the rights of holders of
the Common Stock purchasable upon such exercise, including the right to
receive payments, if any, on the Common Stock purchasable upon such
exercise. (Section 3.01 of the Warrant Agreement)
Exercise of Warrants
Warrants may be exercised by delivery to the Warrant Agent of
payment as provided in the Prospectus Supplement of the applicable amount
required to purchase the Common Stock purchasable upon such exercise
together with certain information set forth on the reverse side of the
Warrant Certificate. Unless otherwise provided in the Prospectus
Supplement, upon receipt of such payment and the Warrant Certificate, a new
Warrant Certificate will be issued for the amount of unexercised Warrants.
(Section 2.01 of Warrant Agreement)
The exercise price payable and the number of shares of Common
Stock purchasable upon the exercise of each Warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of Common Stock or a combination, subdivision or relcassification
of Common Stock. No adjustment in the exercise price payable and the
number of shares purchasable upon exercise of the Warrants will be required
until cumulative adjustments require an adjustment of at least 1% thereof.
<PAGE>
The Company may, at its option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of Warrants, but the Company
will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or
sale or conveyance of the property of the Company as an entirety, the
holder of each outstanding Warrant shall have the right to the kind and
amount of shares of stock and other securities and property (including
cash) receivable by a holder of the number of shares of Common Stock into
which such Warrants were exercisable immediately prior thereto. (Sections
5.01 and 5.02 of the Warrant Agreement)
Modification of Warrant Agreement
The Warrant Agreement contains a provision permitting the Company
and the Warrant Agent, without the consent of any Warrant Holder, to
supplement or amend the Warrant Agreement in order to cure any ambiguity,
and to correct or supplement any provision contained therein which may be
defective or inconsistent with any other provision or to make other pro-
visions in regard to matters or questions arising thereunder which the
Company and the Warrant Agent may deem necessary or desirable and which do
not adversely affect the interests of the Warrant Holders. (Section 7.01
of the Warrant)
FEDERAL TAX CONSIDERATIONS AS A
REAL PROPERTY HOLDING CORPORATION
The Company believes that the Company would likely constitute a
United States real property holding corporation within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code"). Under certain
provisions of the Code and Treasury Regulations thereunder, gain realized
by a non-United States person who would not ordinarily be subject to U.S.
federal income tax on gains would, under certain circumstances, be subject
to tax (the "special tax") on gain realized on the disposition (and
possible withholding tax on the proceeds from such disposition (the
"withholding tax")) of Securities, notwithstanding such non-United States
person's lack of other connections with the United States. However,
because the Common Stock of the Company is "regularly traded on an
established securities market" (within the meaning of Section 897(c)(3) of
the Code), under the Code and Temporary Treasury Regulations now in effect,
the special tax and the withholding tax would apply to the disposition by a
non-U.S. person of an interest in a class of Securities that is not
regularly traded on an established securities market only if on the date
such interest was acquired by such person it had a fair market value
greater than the fair market value on that date of 5% of the regularly
traded class of Securities with the lowest fair market value. However, if
such non-regularly traded class of Securities is convertible into a
regularly traded class of Securities, the special tax and the withholding
tax would apply to the disposition of an interest in such non-regularly
traded class of Securities only if on the date such interest was acquired
by such person it had a fair market value greater than the fair market
value on that date of 5% of the regularly traded class of Securities into
which it is convertible. The special tax (but, except in certain
circumstances, not the withholding tax) would likewise apply to a
disposition of an interest in a class of Securities that is regularly
traded on an established securities market by a non-U.S. person who
beneficially owns, directly or indirectly, more than 5% of such class of
Securities at any time during the five-year period immediately preceding
the disposition of the interest.
Certain United States federal tax consequences of an investment
in a class of Securities will, to the extent appropriate under the
<PAGE>
circumstances, be described in the Prospectus Supplement relating thereto.
Each prospective holder of Securities is urged to consult its own tax
advisors regarding the United States federal tax consequences of an
investment in such Securities, as well as the tax consequences under the
laws of any state, local or other United States or non-United States taxing
jurisdiction.
PLAN OF DISTRIBUTION
General. The Company may sell Offered Securities to or through
underwriters or dealers, and also may sell Offered Securities directly to
other purchasers or through agents.
The distribution of the Offered Securities may be effected from
time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, underwriters
may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Offered Securities to or
through dealers and such dealers may receive compensation in the form of
discounts, concessions and commissions from the Underwriters and
commissions from the purchasers for whom they may act as agents. Under-
writers, dealers and agents that participate in the distribution of Offered
Securities may be deemed to be underwriters, and any discounts or
commissions received by them from the Company and any profit on the resale
of Offered Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Except for the Common Stock, the Offered Securities will be a new
issue of securities with no established trading market. Underwriters and
agents to whom such Offered Securities are sold by the Company for public
offering and sale may make a market in such Offered Securities, but such
underwriters and agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as
to the liquidity of the trading market for such Offered Securities.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of
Offered Securities may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Act.
Delayed Delivery Arrangements. If so indicated in the Prospectus
Supplement, the Company will authorize underwriters or other persons acting
as the Company's agents to solicit offers by certain institutions to
purchase Convertible Debt Securities from the Company pursuant to contracts
providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must
be approved by the Company. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of the
Convertible Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
<PAGE>
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for
the Company by White & Case, 1155 Avenue of the Americas, New York, New
York, and for the underwriters or agents, if any, by Davis Polk & Wardwell,
450 Lexington Avenue, New York, New York.
EXPERTS
The audited consolidated financial statements and schedules
incorporated by reference in this Prospectus have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in auditing and
accounting in giving said reports.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee . . . . . . . . . . . . $103,448.28
Accounting fees and expenses . . . . . 2,500.00
Legal fees and expenses . . . . . . . 200,000.00
Blue Sky and Legal Investment
fees and expenses . . . . . . . . . . 20,000.00
Trustees' fees and expenses . . . . . . 9,000.00
Warrant Agent's fees . . . . . . . . . 1,500.00
Depositary's fees . . . . . . . . . . . 1,500.00
Transfer Agent's fees . . . . . . . . . 1,500.00
Rating agency fees . . . . . . . . . . 98,250.00
Printing and engraving expenses . . . . 20,000.00
Miscellaneous . . . . . . . . . . . . 2,301.72
Total . . . . . . . . . . . . . . . . $460,000.00
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes
and empowers the Company to indemnify the directors, officers, employees
and agents of the Company against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought
against any such person as a result of his relationship with the Company,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
Company in connection with the acts or events on which such claim, action
or suit is based. The finding of either civil or criminal liability on the
part of such persons in connection with such acts or events is not
necessarily determinative of the question of whether such persons have met
the required standard of conduct and are, accordingly, entitled to be
indemnified. The foregoing statements are subject to the detailed
provisions of Section 145 of the General Corporation Law of the State of
Delaware.
<PAGE>
The By-Laws of the Company provide that each person who at any
time is or shall have been a director or officer of the Company, or is or
shall have been serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
request of the Company, and his heirs, executors and administrators, shall
be indemnified by the Company in accordance with and to the full extent
permitted by the General Corporation Law of the State of Delaware. Section
6 of the By-Laws of the Company facilitates enforcement of the right of
directors and owners to be indemnified by establishing such right as a
contract right pursuant to which the person entitled thereto may bring suit
as if the indemnification provisions of the By-Laws were set forth in a
separate written contract between the Company and the director or officer.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Documents
<S> <C>
1.1* - Proposed form of Underwriting Agreement relating to the
Common Stock, the Preferred Stock, the Depositary Shares and
the Warrants.
1.2* - Proposed form of Underwriting Agreement relating to the
Convertible Debt Securities.
4.1 - Restated Certificate of Incorporation dated as of July 13,
1987. Incorporated by reference to Exhibit 3 to
registrant's Form 10-K for the year ended December 31, 1987.
4.2 - By-Laws as amended through June 24, 1992 and adopted June
24, 1992. Incorporated by reference to Exhibit (3)b to
registrant's Form 10-K for the year ended December 31, 1992.
4.3 - Certificate of Designations, Preferences and Rights of $5.50
Convertible Preferred Stock, $5 Par Value, dated November
13, 1992. Incorporated by reference to Exhibit (3)c to
registrant's Form 10-K for the year ended December 31, 1992.
4.4 - Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company as Equal
Value Agent relating to the Equal Value Rights.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 - First Amendment dated as of October 1, 1987 amending the
Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company, as
Rights Agent. Incorporated by reference to Exhibit (4)b to
registrant's Form 10-K for the year ended December 31, 1990.
4.6 - Second Amendment dated as of May 1, 1989 amending the Rights
Agreement dated as of September 23, 1987 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's Form
8 dated June 7, 1989.
4.7 - Rights Agreement dated August 30, 1990 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated August 31, 1990.
<PAGE>
4.8 and 4.9 - First Amendment dated November 27, 1990 and Second Amendment
dated December 7, 1990 to the aforementioned Rights
Agreement dated August 30, 1990. Incorporated by reference
to Exhibits 2 and 3, respectively, to registrant's Form 8
dated December 7, 1990.
4.10 - Third Amendment dated February 26, 1992 to the
aforementioned Rights Agreement dated August 30, 1990.
Incorporated by reference to Exhibit 4 to registrant's Form
8 dated March 17, 1992.
4.11 - Deposit Agreement dated as of November 15, 1992 to
registrant, Chemical Bank, as Depositary and all holders
from time to time of depositary receipts issued thereunder.
Incorporated by reference to Exhibit 4(j) to registrant's
Registration Statement on Form S-3 (File No. 33-65274).
4.12* - Senior Debt Indenture between registrant and The Bank of New
York (including form of Convertible Senior Debt Securities).
4.13* - Subordinated Debt Indenture between registrant and The Bank
of New York (including form of Convertible Subordinated Debt
Securities).
4.14* - Form of Deposit Agreement (including form of Depositary
Receipt).
4.15* - Form of Warrant Agreement (including form of Warrant).
5* - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges.
Incorporated by reference to Exhibit 12.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1994.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends. Incorporated by reference
to Exhibit 12.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1994.
23.1 - Consent of Arthur Andersen & Co.
23.2* - Consent of White & Case (included in Exhibit 5).
24* - Power of Attorney of certain officers and directors.
25.1* - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, Senior
Debt Indenture Trustee.
25.2* - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
____________
* Previously filed.
</TABLE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Act;
<PAGE>
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such infor-
mation in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
1934 Act that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering;
(4) that, for purposes of determining any liability under
the Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the 1934 Act that is
incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(5) that, for purposes of determining any liability under
the Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus, filed by the
Registrant pursuant to Rule 424(b)(1) or (4) under the Act
shall be deemed to be part of this registration statement as
of the time it was declared effective.
Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforce-
able. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
<PAGE>
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Denver, State of
Colorado, on the 6th day of September, 1994.
NEWMONT MINING CORPORATION
By /s/ Timothy J. Schmitt
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature TitleDate
<S> <C> <C>
* September 6, 1994
Rudolph I.J. Agnew Director
* September 6, 1994
J.P. Bolduc Director
* September 6, 1994
Ronald C. Cambre Chief Executive
Officer and Vice
Chairman and
Director (Prin-
cipal Executive
Officer)
* September 6, 1994
Joseph P. Flannery Director
* September 6, 1994
Thomas A. Holmes Director
* September 6, 1994
Gordon R. Parker Chairman and
Director
* September 6, 1994
T. Peter Philip President and
Chief Operating
Officer and
Director
* September 6, 1994
<PAGE>
Robin A. Plumbridge Director
* September 61994
William I.M. Turner,
Jr. Director
* September 6, 1994
Wayne W. Murdy Senior Vice
President and
Chief Financial
Officer (Prin-
cipal Financial
Officer)
* September 6, 1994
Gary E. Farmer Vice President
and Controller
(Principal
Accounting
Officer)
</TABLE>
*By /s/ Timothy J. Schmitt
Timothy J. Schmitt as
Attorney-in-fact
EXHIBIT INDEX
<TABLE>
Exhibit
Number
<S> <C>
1.1* - Proposed form of Underwriting Agreement relating to the
Common Stock, the Preferred Stock, the Depositary Shares and
the Warrants.
1.2* - Proposed form of Underwriting Agreement relating to the
Convertible Debt Securities.
4.1 - Restated Certificate of Incorporation dated as of July 13,
1987. Incorporated by reference to Exhibit 3 to
registrant's Form 10-K for the year ended December 31, 1987.
4.2 - By-Laws as amended through June 24, 1992 and adopted June
24, 1992. Incorporated by reference to Exhibit (3)b to
registrant's Form 10-K for the year ended December 31, 1992.
4.3 - Certificate of Designations, Preferences and Rights of $5.50
Convertible Preferred Stock, $5 Par Value, dated November
13, 1992. Incorporated by reference to Exhibit (3)c to
registrant's Form 10-K for the year ended December 31, 1992.
4.4 - Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company as Equal
Value Agent relating to the Equal Value Rights.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 - First Amendment dated as of October 1, 1987 amending the
Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company, as
<PAGE>
Rights Agent. Incorporated by reference to Exhibit (4)b to
registrant's Form 10-K for the year ended December 31, 1990.
4.6 - Second Amendment dated as of May 1, 1989 amending the Rights
Agreement dated as of September 23, 1987 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's Form
8 dated June 7, 1989.
4.7 - Rights Agreement dated August 30, 1990 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated August 31, 1990.
4.8 and 4.9 - First Amendment dated November 27, 1990 and Second Amendment
dated August 30, 1990. Incorporated by reference to
Exhibits 2 and 3, respectively, to registrant's Form 8 dated
December 7, 1990.
4.10 - Third Amendment dated February 26, 1992 to the
aforementioned Rights Agreement dated August 30, 1990.
Incorporated by reference to Exhibit 4 to registrant's Form
8 dated March 17, 1992.
4.11 - Deposit Agreement dated as of November 15, 1992 to
registrant, Chemical Bank, as Depositary and all holders
from time to time of depositary receipts issued thereunder.
Incorporated by reference to Exhibit 4(j) to registrant's
Registration Statement on Form S-3 (File No. 33-65274).
4.12* - Senior Debt Indenture between registrant and The Bank of New
York (including form of Convertible Senior Debt Securities).
4.13* - Subordinated Debt Indenture between the registrant and The
Bank of New York (including form of Convertible Subordinated
Debt Securities).
4.14* - Form of Deposit Agreement (including form of Depositary
Receipt).
4.15* - Form of Warrant (including form of Warrant).
5* - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges.
Incorporated by reference to Exhibit 12.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1994.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends. Incorporated by reference
to Exhibit 12.2 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1994.
23.1 - Consent of Arthur Andersen & Co.
23.2* - Consent of White & Case (included in Exhibit 5).
24* - Power of Attorney of certain officers and directors.
25.1* - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, Senior
Debt Indenture Trustee.
25.2* - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
________________
* Previously filed.
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-3 Registration
Statement of our reports dated January 25, 1994 included in
Newmont Mining Corporation's Form 10-K for the year ended
<PAGE>
December 31, 1993 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN & CO.
Denver, Colorado,
September 6, 1994.
